Зображення сторінки
PDF
ePub
[blocks in formation]

act of the plaintiff, Mabel Himmelbauer, or her husband, Antone Himmelbauer, or their agents, or unless they gave consent to the goods remaining there.” .

He admitted the sheriff, who thereupon made
the levy. Under that state of facts we think
While the
instruction No. 5 not erroneous.
general doctrine that a man's home is his
castle, where an officer may not enter against
the consent of the owner for the service of
civil process, is well established (Ilsley v.
Nichols, 12 Pick. [Mass.] 270, 22 Am. Dec.

between plaintiff and her mother and others who came to the house for consultation with this plaintiff. The property and furniture in the house were not disarranged, except [2] There is no conflict in the evidence as that one chair had been moved by the keeper from the dining room to the kitchen, where to the manner in which the entrance and levy the custodian maintained a fire and spent a were made. Hageman was in possession of large portion of his time, and the bedroom the house at 622 Harrison avenue on April 1st. He was a constable and stated that he used by him was not well cared for. Within the time from the levy until remov-had attached the property the day before. al of the property, Mrs. Cloutier served affidavit of ownership of a part of the property upon the sheriff and demanded its return to her, as did also Mrs. Moriarity, a resident of San Diego, Cal., and this plaintiff, assuming to act under as assignment to her of her husband's right to claim the property as exempt, made and served upon the sheriff an affidavit of ownership of the property in contro-425), the rule cannot apply under all circumversy, claiming it exempt and demanding its stances. The design of the law is the presreturn. All of Mrs. Moriarity's property was ervation of the sanctity of the home, rather returned to her, and likewise all but a small than the protection of the property therein portion of that claimed by Mrs. Cloutier. The (Ilsley v. Nichols, supra), and hence the rule Trial re- should not be applied under all circumstancplaintiff's demand was refused. sulted in verdict and judgment for defend-es as that it might become an instrument to ants upon both causes of action. Appeal is defeat the ends of justice. If the entry of a from the judgment. dwelling house is made without force, peace[1] Numerous errors are assigned by ap-ably, and even permissibly, an officer may pellant, but we think none merit serious con- proceed to levy upon goods in the house. 6 C. sideration, save and except instruction No. J. 219; 4 Cyc. 581; Hitchcock v. Holmes, 43 The writ commanded the sheriff 5 proposed and given by the court. Before Conn. 528. passing to a discussion of it, however, we to attach the property of defendants. think a condition fairly appears from the statute requires that the officer shall seize record worthy of passing observation. The and take possession of the property in makrecord is entirely devoid of any facts or cir- ing his levy (Rev. Codes, §§ 9260, 9262), and cumstances to justify some three or four dif- hence, having gained a peaceable entrance, ferent keepers remaining in the house at 622 he was but pursuing the plain requirement Harrison avenue, where their presence under of the law in making the levy and seizing the the most favorable circumstances would be property. In substance, the instruction comembarrassing to two ladies, for a period of plained of so told the jury and was a correct 18 days. All were strangers to plaintiff and statement of the law as applied to the facts her mother, their presence in the kitchen and of this case. elsewhere about the house at various times of the day and night apparently wholly uncalled for, and why such an unusual length of time was consumed in making inventory and preparing the property for removal and actually removing it is not shown by the record, is inexplicable, and warrants severe condemnation.

At the close of all the evidence the plaintiff proposed ten instructions, all of which were The defendants offered refused save one. four which were all refused, the court instructing the jury in writing in accordance with its views of the law applicable to the facts of the case. Instruction No. 5, given by the court, is as follows:

The

[3] Appellant assigns as error the refusal of the court to give his offered instruction No. 1, being a statement of the issue as defined in the pleadings. While the practice of giving such statement to the jury is commended (Paxton v. Woodward, 31 Mont. 195, 78 Pac. 215, 107 Am. St. Rep. 416, 3 Ann. Cas. 546; Rand v. Butte Electric Ry. Co., 40 Mont. 398, 107 Pac. 87; Frederick v. Hale, 42 Mont. 153, 112 Pac. 70), error cannot be predicated upon its failure so to do.

Other assignments of error are without merit and require no further consideration.

We think the jury was fully and fairly instructed upon all matters of law applicable to the case, and that the judgment should be affirmed, and it is so ordered. Affirmed.

CALLAWAY, C. J., and COOPER, HOLLOWAY, and STARK, JJ., concur.

"You are further instructed that as a matter of law, under the facts of this case, the defendants had the right to enter the premises in question and to seize said property under the writ of attachment and to leave such goods in the house, but only so long as it was reasonably necessary under the circumstances to pack up and prepare the same for removal and to remove the same, unless the removal of said goods from said house was prevented by the consideration, after a rehearing, has disclosed

On Rehearing.

SPENCER, District Judge. More mature

(220 P.)

that error upon the part of the trial court, even remotely connected with any of the proprejudicial to the rights of appellant was ceedings in relation to the levy upon, detencommitted in giving instruction No. 11. Suf- tion, or removal of the property; but we ficient statement of the facts appears in the think the jury was in no manner misled former opinion, and we think that decision thereby, and the error, if any, was harmless. correct in material particulars, save and except so much thereof as fails to disapprove of instruction No. 11.

[4, 5] Appellant urges all specifications of error made upon the original hearing, but lays particular stress upon the giving of instructions Nos. 5 and 11, and only these require consideration. As the order of this court heretofore made must be overruled and a new trial granted, attention should be called to the record to show why No. 5 has our approval. Instruction No. 5 reads as follows:

"You are further instructed that as a matter of law, under the facts of this case, the defendants had the right to enter the premises in question and to seize said property under the writ of attachment and to leave such goods in the house, but only so long as it was reasonably necessary under the circumstances to pack up and prepare the same for removal and to remove the same, unless the removal of said goods from said house was prevented by the act of the plaintiff, Mabel Himmelbauer, or her husband, Antone Himmelbauer, or their agents, or unless they gave consent to the goods remaining there."

The record fails to disclose in what manner

the constable effected his first entrance into the house in question; fails to show how or from whom he obtained the key with which he later admitted the sheriff; fails to show whether he admitted the sheriff pursuant to previous arrangement or in consequence of a request after a casual meeting; and fails to impart any information as to what was the result of the attachment which the testimony showed he levied the day prior to the levy by the sheriff.

[6] Instruction No. 11, however, especially in so far as it applies to the second cause of action, is erroneous. It reads:

"You are instructed that if you find from a preponderance of the evidence in this cause that the property described in the complaint was property exempt from attachment, and that demand had been made therefor, your verdict should be for the plaintiff for the reasonable value of such property on the 1st day of April, 1918, not, however, exceeding the sum of $1,000 with interest thereon from said date at 8 per cent. per annum; also, for such additional sum as you may find that she has incurred as expenses in the pursuit of said property, not exceeding the sum of $100.

"And upon plaintiff's second cause of action, if you find that the property is exempt and that she made demand therefor, and if you find from a preponderance of the evidence that the conduct of the officers, while in the house where the property was situated and during the time when the plaintiff was present, acted in a wanton and malicious manner and not reasonably necessary for the preservation and care of the property, you may find for the plaintiff such actual damages, if any, as you believe from the evidence she has suffered therefrom, and for such exemplary damages as you think she is entitled to under all the facts and circumstances in this cause; but you cannot award the plaintiff any damages for mere humiliation or injury to feeling in any event occasioned or caused by the mere fact of the attachment having been made upon the property, or the mere fact of the presence of the officers in caring for such property."

Under this instruction the jury was advised that at least three facts must exist before the plaintiff could prevail in actual damages, viz.: (1) That the property in question was exempt; (2) that plaintiff made demand therefore; and (3) that the officers acted in a wanton and malicious manner. The second cause

On April 1, 1918, the house at 622 Harrison avenue was in the apparent possession of Hageman, who produced the key and al-was not founded upon the theory that the lowed the sheriff to enter. No circumstances property was exempt, the demand was adappear in the record to arouse the suspicion, mitted in the pleadings, and the wanton and much less to justify the belief by the sheriff, malicious conduct of the officers, if any, could that such possession was not rightful, nor do only apply to exemplary damages, not to the we think the record discloses any facts which actual, and hence it becomes apparent that would require the sheriff before making his the jury was not required to find the existlevy to make further investigation after his ence of any of these facts, in order to base a entry was made without force, peaceably, and verdict for actual damages in favor of plaineven by permission of one not only in appar- tiff. The instruction was an incorrect stateent but actual possession. Neither Hageman ment of the law, and indulging the presumpnor the deputy sheriff were produced as wit- tion that the jury followed the instructions nesses to explain the circumstances attending of the court, was clearly prejudicial to the the entrance of either officer, and while an-rights of appellant, and for this error plainother trial of this case may disclose circum- tiff is entitled to a new trial. stances such as to make instruction No. 5 wholly inapplicable, we think it not erroneous when applied to the undisputed facts of this case. The injection of the name of Antone Himmelbauer into the instruction was not justified by the evidence, since he was not

The former order of this court is overruled, the judgment of the lower court is ordered reversed, and a new trial granted.

CALLAWAY, C. J., and COOPER, HOLLOWAY, and STARK, JJ., concur.

STATE ex rel. LA POINT v. DISTRICT
COURT OF SECOND JUDICIAL DIST. IN
AND FOR SILVER BOW COUNTY et al.
(No. 5402.)

to maintain herself and the child; that $75 a month was a reasonable and necessary amount to be allowed to her for that purpose; that $200 was a reasonably necessary sum to be paid by her to her attorney for prosecut

(Supreme Court of Montana. Nov. 9, 1923.)ing the action; and that $50 was a reasonable

1. Husband and wife 2852-District court held empowered to grant separate maintenance and temporary alimony, attorney's fees, and suit money, without joining action for divorce.

sum to be allowed for court costs.

On the filing of the complaint, Hon. Joseph R. Jackson, the district judge in whose court said action was pending, issued an order requiring the defendant to show cause why he should not be compelled to pay alimony pendente lite, together with attorney's fees and court costs. On the return day of the order the defendant appeared and filed a motion to dismiss the same on the ground that the complaint did not state facts sufficient to constitute a cause of action, which motion was subsequently overruled by the

In view of Rev. Codes 1921, § 5768, recognizing the right of the district court to grant maintenance without a divorce, and sections 5784, 5800, making it the husband's duty to support the wife, and sections 10545, 10549, 10703, 10704, as to effect of the Code application of the common law, etc., the district court held empowered to grant a decree for separate maintenance together with alimony, attorney's fees, and suit money, during the court, and the order to show cause was pendency of the action, on the ground of will-heard upon its merits. At the conclusion of ful neglect for less than a year, without the the hearing an order was made requiring the necessity of joining therewith an application for divorce under sections 5736, 5747, notwithstanding section 5769, authorizing such a suit on ground of desertion only.

2. Statutes

239- Common-law rules not overturned except by clear and unambiguous language.

Common-law rules are not to be overturned by statute except by clear and unambiguous language.

defendant to pay to the plaintiff as alimony during the pendency of the action the sum of $40 per month, and also an attorney fee of $50. Subsequent to the making of this order, the defendant in the action filed his petition in this court asking for a writ of prohibition directing the above-named district court and the judge thereof to annul, vacate, and set aside the order requiring him to pay alimony and attorney's fees, and to refrain from further proceeding thereunder. Original petition by the State, on the re- Upon the filing of the petition an alternative lation of O'Brien La Point, for writ of pro-writ of prohibition was issued out of this hibition, against the District Court of the court requiring the respondents to appear Second Judicial District in and for the Coun- and show cause why such writ should not be ty of Silver Bow, and Joseph R. Jackson, as granted. On the return day respondents apJudge thereof, Respondents' motion to peared and filed a motion to quash the writ quash sustained. on the grounds that the petition does not state facts sufficient to entitle relator to

Timothy Nolan, of Butte, for relator.

H. A. Tyvand, J. F. Emigh, and J. J. the relief asked, and that the court was Bourquin, all of Butte, for respondents.

without jurisdiction. The matter was argued and submitted to this court for determination.

maintenance on the ground of willful neglect independent of an action for divorce.

STARK, J. [1] On or about the 10th day of September, 1923, Violet La Point, as plain- Under the arguments and briefs of counsel, tiff, commenced an action in the district court the sole question presented for decision is of Silver Bow county against O'Brien La whether, under the laws of this state, a Point, as defendant, to obtain a decree of wife can maintain an action for separate separate maintenance. In her complaint she alleged her marriage with the defendant on the 24th day of January, 1923; that she had Counsel for relator contends that this canresided in the state of Montana for more not be done, and his argument runs along than one year next preceding the commence- this line: He cites section 5736, Revised ment of the suit; that there was living as Codes 1921, which provides that absolute the issue of her marriage with the defendant divorces, separations from bed and board, or a minor child, Juanita La Point, born on the decrees of separate maintenance may be 25th day of August, 1923; that said child granted for the causes therein enumerated, was in her custody; and that she was a fit amongst them (3) willful desertion and (4) willand proper person to care for her. She fur- ful neglect; also section 5747, which declares ther alleged that since the 23d day of Au- that willful desertion or willful neglect must gust, 1923, the defendant had neglected to continue for the space of one year before provide the common necessaries of life for there is ground for divorce; and section 5769, the plaintiff and her minor child, although providing that while an action for divorce be had the ability to do so; that she had is pending the court or judge may require no money or property of her own with which the husband to pay as alimony any money

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(220 P.)

necessary to enable the wife to support her-, mental jurisdiction of courts of equity in all self and children, or to prosecute or defend cases where authority is granted to the courts the action, and "when the husband willfully to hear and determine such causes." deserts the wife, she may, without applying for a divorce maintain in the district court an action against him for permanent support and maintenance of herself and children," and the court may "during the pendency of * require the husband to pay as alimony" the necessary funds to enable her to prosecute "the action and for support and maintenance."

such action *

the

From a consideration of these sections, counsel argues that since section 5769, supra, is the only one which makes provision for the allowance of alimony pendente lite and suit money, and as that section makes a specific provision that an action for separate maintenance may be maintained on ground of willful desertion before the expiration of the time required to make it a ground for divorce, and that being the only exception under the statute, therefore an action for separate maintenance on any ground other than willful desertion cannot be maintained until such time as the basis of complaint has ripened into a cause for divorce and an action for divorce is joined there

with. From this he contends that, since the

Counsel for relator does not question the doctrine of the cases of Edgerton v. Edgerton and State ex rel. Wooten v. District Court, supra, but claims they have no application to this case because of an implied limitation which he argues is contained in section 5769, supra; that is, he seeks to apply the rule comprehended in the maxim that the expression of one thing is the exclusion of others. It therefore becomes necessary to inquire into the results which flow from the enactment of this statute, which at

most is a mere declaration of the commonlaw rule that had existed long prior to its passage and was not therefore a new enactment of law.

Section 10704, Revised Codes 1921, is as follows:

"The provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments."

Referring to just what is meant by the "common law," in Etna Accident & Liability Co. v. Miller, 54 Mont. 377, 382, 170 Pac. 760, (L. R. A. 19180, 954), Mr. Justice Sanner

said:

complaint in the action filed in the district
court does not contain an allegation that the
willful neglect had continued for a period
of one year, but, on the contrary, affirmative-
ly shows that plaintiff and defendant had
been married for less than one year, and that
the alleged willful neglect had continued for
a space of only seventeen days, the plain-wealth."
tin does not and cannot state facts sufficient

"Broadly speaking, it means, of course, the common law of England; but it means that body of jurisprudence as applied and modified by the courts of this country up to the time it became a rule of decision in this common

to give the court jurisdiction of the subject- Section 10703, Revised Codes 1921, is as

matter.

If the power of the court to entertain an action for separate maintenance is limited by these provisions, relator's contention might have merit. In Edgerton v. Edgerton, 12 Mont. 122, 29 Pac. 966, 16 L. R. A. 94, 33 Am. St. Rep. 557, this court decided in 1892 that the district court in the exercise of its equity jurisdiction had authority to grant separate maintenance to a wife, independently of an action for divorce, when it was shown that the husband had abandoned her without cause, or by his cruelty or other improper conduct had given her cause for living separate and apart from him.

In State ex rel. Wooten v. District Court, 57 Mont. 525, 189 Pac. 236, 9 A. L. R. 1212, it was held that the defendant wife in an action brought by her husband for the annulment of the marriage was entitled to allmony, suit money, and attorney's fees, pendente lite, although the statute giving the court jurisdiction to entertain such an action made no provision therefor. In the course

of the opinion the court said: "The overwhelming weight of authority ** holds that the right to award alimony in matrimonial cases is a part of the funda

follows:

[blocks in formation]

Sections 10704 and 10703, above, were enacted as sections 3454 and 3452, respectively, of the Code of Civil Procedure of 1895, and have been in force at all times since. Under identical statutory provisions the Supreme Court of California, in Quist v. Sandman, 154 Cal. 748, 99 Pac. 204, Michaelson v. Fish, 1 Cal. App. 116, 81 Pac. 661, Lux v. Haggin, 69 Cal, 255, 384, 4 Pac. 919, 10 Pac. 674, and Sharon v. Sharon, 75 Cal. 1, 13, 16 Pac. 345, has held that statutes are but continuations of the basic common law, and that when the statute is either silent or ambiguous, in order to determine rights under it an examination of both the common law and the statute is necessary.

Our Code further recognizes the continuance of the common law, and that the codification does not embrace the whole body of the law in section 10545, Revised Codes 1921,

[blocks in formation]

It will be observed that the provisions of section 5769, supra, under consideration, are affirmative in character and contain no negative expressions. "It has been said that statutes are not presumed to make any alterations in the common law further than is expressly declared, and that a statute made in the affirmative without any negative expressed or implied does not take away the common law." 25 R. C. L. 1954, § 180.

[2] The rules of the common law are not to be overturned except by clear and unambiguous language. Ryalls v. Mechanics' Mills, 150 Mass. 190, 22 N. E. -766, 5 L. R. A. 667. In Endlich on Interpretation of Statutes, 127, the rule is thus stated:

was not among those enumerated, it was excluded by implication. In rejecting this contention, after pointing out that at common law an appellate court had, the inherent power to award a new trial on the issue of damages only, the court said:

"In arriving at our conclusion 'in this matter we have not left out of view the suggestion of counsel for appellant that under the rule of 'expressio unius est exclusio alterius' the grant of power to this court to reverse partially contained in sections * * of the Code, impliedly prohibits it from so doing in cases not coming within the provisions of these sections. In so far as the right of this court to limit the issues when ordering a new trial is derived from the common law this rule has no application. A great many of our statutes dealing not only with the substantive, but also with the adjective, law consist merely of codifications, sometimes general, but in most cases only partial, of some particular rule or principle of the common law; and, should the courts hold that, when any rule or principle of the common law is by the Legislature partially incorporated into a statute, the remainder of the rule is thereby repealed or annulled, endless trouble and confusion would result, necessitating in all cases a complete codification of the subject dealt with, by the statute."

"The principle is recognized that an intent to alter the common law beyond the evident purpose of the act is not to be presumed. It has been expressly laid down that 'statutes It is our conclusion that under the foreare not presumed to make any alteration in the common law further or otherwise than going rules of construction, the district court the act does expressly declare; therefore in all sitting in equity is not divested of jurisdicgeneral matters the law presumes the act did tion to grant a decree of separate maintenot intend to make any alteration; the nance independent of an action for divorce, rules of the common law are not to be chang- by the exception contained in section 5769, ed by doubtful implication." "

*

See, also, Potter's Dwarris on Statutes & Constitutions, p. 185; 2 Lewis' Sutherland on Statutory Construction (2d Ed.) §§ 454, 455.

The case of Yazoo & Misssissippi Valley Rd. Co. v. Scott, 108 Miss. 871, 67 South. 491, L. R. A. 1915E, 239, Ann. Cas. 1917E, 880, arose out of an action for personal injuries. Upon the first trial in the lower court Scott prevailed and was awarded $100 damages. On appeal he obtained a reversal for the reason that the damages awarded were inadequate. In reversing the judgment, however, the new trial directed was restricted to the ascertainment of damages only, and in so far as it settled the question of liability the judgment was permitted to remain in full force and effect. A second trial resulted in a verdict in favor of Scott for $6,750. The railroad company took an appeal and contended that the Supreme Court was without power to direct that the case should be tried on the question of damages only, and therefore the trial court had erred in restricting the trial to that issue. One of the propositions raised by the appellant was that since the Code had given the Supreme Court authority in some instances to reverse a case partially, and the right to grant a retrial on the issue of damages only

supra.

[blocks in formation]

Assume that the wife commenced an action for divorce on the ground of willful neglect and in her complaint by mistake or otherwise alleged that the same has continued for a period of more than one year, but on the trial it developed that it had continued for only a period of nine months, or for any period of time less than one year, and for that reason alone the court denied a judgment for divorce, still under the above section the court in its discretion could award maintenance and support to the wife and children. It is not reasonable to assume that it was the intent of the Legislature to authorize the court to award maintenance and support to the wife where she has come into court with an allegation which, so far as the statu tory period of time is concerned, is intentionally or otherwise untrue, and to deny the relief when she truthfully states the fact. This section is not limited to a case where divorce is sought on any particular ground,

« НазадПродовжити »